Law Professor Explains How Even When A Site Copies An Entire Article, It May Still Be Fair Use

from the a-lesson-in-fair-use dept

Berkeley law professor Jason Schultz has filed an excellent amicus brief in one of the many Righthaven lawsuits, pointing out that using an entire article does not preclude fair use (pdf), and then going on to explain why the use of an entire article in this particular case (which Righthaven brought against the Center for Intercultural Organizing) was almost certainly fair use. Basically, Righthaven has taken the approach that if an entire article is being used, then there can be no fair use. However, as Schultz points out, that's not at all what copyright law says:
A fair-use inquiry balances four statutory factors.... Righthaven, however, asks this Court to ignore those traditional factors and embrace an inflexible, one-factor test that prohibits a fair-use finding whenever an entire copyrighted work is used. That approach finds no support in the text and purposes of the Copyright Act and the cases interpreting it. Indeed, the Supreme Court, the Ninth Circuit, and this Court have all found the use of entire copyrighted works to be consistent with the fair-use doctrine. Those rulings recognize that copyright law balances two important public interests: promoting creative expression and encouraging the use of copyrighted works for socially beneficial purposes.
It is a common misconception that using an entire work means there's no fair use defense. We've repeatedly pointed out cases where courts have found fair use, even if an "entire" work was being used. But, still, we get commenters all the time who argue that there's no such thing as fair use if you use an entire work. Schultz, in his brief, highlights many more examples, including the explanations of why each case was still deemed as fair use. From there, he goes on and runs through the four factors in this particular case, and explains why it should be considered fair use as well. It will be interesting to see how the judge rules, because that could impact many other Righthaven cases as well.

Filed Under: copyright, fair use, jason schultz
Companies: righthaven

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  1. identicon
    The Vandals, 27 Dec 2010 @ 10:20pm

    Transformative Works

    Although I'm not completely sold on the argument that CIO's use is transformative, I love the brief because it really opens up the arguments for a full debate. I usually think of transformative as meaning there is an actual physical transformation, as in taking a picture of Mickey Mouse and transforming it from a cartoon into a social comment.

    Our case, The Daily Variety Vs. The Vandals, looks like a joke when run though Schultz' analysis. We are presently waiting for a judge in Delaware to decide if it should be heard out there or here in California where all the parties and the lawyers are located. If you are unfamiliar with our case, we were sued for releasing an album that included a parody of the Daily Variety's "special font."

    We discontinued the product as part of a settlement that we were railroaded into by the usual threats of burdensome litigation that trolls spew out. Then The Daily Variety abused the settlement agreement by ignoring its terms and suing us 6 years later because they said they "saw the image again on the Internet." So they are trying to frame it as a contract case, but it is really about Fair Use and abusing the legal process.

    Now the Daily Variety has submitted a motion to the court to demand that we not be allowed to represent ourselves and that we be forced to hire expensive Delaware attorneys because it's not fair that we are not spending as much money as they told us we would have to spend if we didn't just give them $75,000 when they demanded it earlier this year. All this from a trade publication for the "arts."

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